The Law on Protection sets out the following alternatives to detention for asylum seekers:
- An obligation to report;
- Bail options (zabezpieczenie pieniężne);
- The obligation to stay in a designated place.
BG can use more than one alternative in the case of any foreigner.[1] Alternatives can be applied by the BG which apprehended the asylum seeker concerned or by the court (subsequent to a BG’s decision not to apply alternatives and who have submitted a motion for detention to the court).[2] An asylum seeker can be detained only if the alternatives to detention cannot be applied.[3] In practice, asylum seekers are placed in detention automatically, and alternatives to detention are not considered, properly justified or explained.[4] In 2022, the Border Guard issued alternatives to detention to 165 asylum seekers and to 817 third country nationals (in total 982).[5]
Over the period 2017-2022 alternatives to detention were used as follows for migrants, including asylum seekers and returnees:[6]
| Alternatives to detention in Poland: 2017-2022 | ||||||
| Type of alternative | 2017 | 2018 | 2019 | 2020 | 2021 | 2022 |
| Reporting obligations | 2,094 | 1,327 | 1,603 | 507 | 818 | 934 |
| Residence in a designated place | 1,818 | 1,058 | 1,522 | 476 | 233 | 281 |
| Bail | 4 | 1 | 3 | 1 | 3 | 6 |
| Surrendering travel documents | 49 | 29 | 36 | 39 | 343 | 223 |
| Total | 3,965 | 2,415 | 3,164 | 1,023 | 1,397 | 1,444 |
Source: Border Guard: 14 January 2018; Border Guard, 14 and 25 January 2019, 17 January 2020, 5 February 2021, Instytut Nauk Prawnych, 2 February, Border Guard March 2022, 25 January 2023.
In the NGOs’ assessment, courts examine the possibility of using alternatives to detention in a superficial way. Courts held very often that it is not possible to impose an alternative to detention based on the risk of absconding and that asylum seekers had no money or no place to stay, ignoring the fact that asylum seekers have a right to live and receive financial assistance in open centres for foreigners managed by the Head of the Office for Foreigners.[7]
[1] Article 88(3) of the Law on Protection.
[2] Articles 88(2) and 88b(2)-(3) Law on Protection.
[3] Article 88a(1) Law on Protection.
[4] Information provided by Legal Intervention Association Rule of Law Institute and Nomada Association, February 2023.
[5] Information provided by Border Guards Headquarters to HFHR, 25 January 2023.
[6] In practice, a person may be subject to more than one alternative measure.
[7] Information provided by HFHR in February 2023.